EU-USA agreements
on extradition and mutual legal assistance held up over "written
instruments"

- US Senate
to have full documentation while EU parliaments not even to be
consulted The
controversial agreements on extradition and mutual legal assistance
between the EU and the USA were signed by both sides in Washington
at the EU-US Summit on 25 June (see: Analysis
and documentation on EU-US agreements). It was then expected
that the agreements would then be referred to the US Senate and
the 15 EU national parliaments for ratification (though the only
choice EU parliaments have is to accept every dot and comma of
the agreements without amendment by passing them into national
law or to reject them - which is highly unlikely).

However, it now transpires that the US Senate "cannot
start the ratification process" until the two "written
instruments" (under Article 3.2 of both agreements, see
text below) have been negotiated and signed by all 15 EU governments.
The procedure for these "written instruments" was set
out months ago on 9 April 2003 in a draft Council Decision (doc
no 8296/03) but at that time there was no urgency. But on
18 June a Note from the Greek Presidency to the Article 36 Committee
said that they had been informed that the US Senate would have
to be given both the two formal agreements and the two "written
instruments" signed by all 15 EU government before they
could begin their deliberations.

The two "written instruments" concern EU member
states agreeing, in writing, that existing bilateral agreements
between the USA and EU member states continue to apply as set
out in the new agreements.

The procedure agreed by the Council is that although the existing
agreements between individual EU member states and the USA are
bilateral (for example, the recently revised UK-USA agreement):
"these negotiations could take place at one time, for
example on the premises of the Council of the European Union
in Brussels"

The 18 June Note from the Greek Presidency also says that
the US Mission had suggested "they could come to a meeting
of the Article 36 Committee to expound their views" and
instructed the "JHA Counsellors" (experts on justice
and home affairs based in the permanent national delegations
in Brussels) to "examine preliminary drafts of such model
written agreements". This approach was then agreed at the
meeting of the Article 36 Committee on 23 June and the issue
has been passed over to the Italian Presidency which started
on 1 July.

The European Parliament and national parliaments were only
consulted on the contents of the two formal agreements at the
beginning of May and their reports - including many critical
comments - were, as usual, ignored.

Tony Bunyan, Statewatch editor, comments:

"It would appear that the Council of the European
Union is intending to draw up these model "written instruments"
for each EU state to sign and then agree them in a collective
closed session without any reference to national parliaments
as to their implications.

Whereas the US Senate will not start its work until all
the relevant documents are before it - including documents ("written
instruments") which EU national parliaments will not have
been consulted on"

2. Coordination of the Member States' position regarding
the Agreements on judicial cooperation with the USA, 18 June
2003: 10618/03 (pdf)

3. Coordination of the Member States' position regarding
the Agreements on judicial cooperation with the USA, 23 June
2003: 10707/03 (pdf)

5. On 9 April the Article 36 Committee of the Council of
the European Union decided that:

"The Agreements foresee in their Article 3 (2) that
written instruments be exchanged between the USA and the Member
States of the Union on the application of bilateral treaties.
Article 3 (3) of the mutual legal assistance Agreement provides
a similar obligation for those Member States that do not have
a bilateral mutual legal assistance treaty with the United States.
With a view to the drawing up of such written instruments the
Member States should coordinate their action within the Council"
(9 April 2003, doc no 8296/03)

and the draft Council Decision said:

"1. The Member States shall take the necessary steps
with a view to the drawing up of written instruments between
them and the USA as contemplated in Article 3 (2) of the extradition
Agreement and Article 3 (2) and (3) of the mutual legal assistance
Agreement.

2. The Member States shall coordinate their actions pursuant
to paragraph 1 within the Council."

6. Article 3.2 in both agreements says:

2. (a) The European Union, pursuant to the Treaty on European
Union, shall ensure that each Member State acknowledges, in a
written instrument between such Member State and the United States
of America, the application, in the manner set forth in this
Article, of its bilateral mutual legal assistance treaty in force
with the United States of America;

(b) The European Union, pursuant to the Treaty on European Union,
shall ensure that new Member States acceding to the European
Union after the entry into force of this Agreement, and having
bilateral mutual legal assistance treaties with the United States
of America, take the measures referred to in subparagraph (a);

(c) The Contracting Parties shall endeavour to complete the process
described in subparagraph (b) prior to the scheduled accession
of a new Member State, or as soon as possible thereafter. The
European Union shall notify the United States of America of the
date of accession of new Member States.

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